Opinion
Nos. 10 JA 72–75 10 JT 72 73 & 75.
02-03-2015
In the Matter of JF, AH, TF, and NF, Minor Children.
Administrative Office of the Court, by Tawanda N. Foster, for petitioner-appellee, and McDowell County DSS, by Megan N. Silver, for guardian ad litem. Mercedes Chut, for respondent-mother-appellant.
Administrative Office of the Court, by Tawanda N. Foster, for petitioner-appellee, and McDowell County DSS, by Megan N. Silver, for guardian ad litem.
Mercedes Chut, for respondent-mother-appellant.
STROUD, Judge.
Respondent-mother appeals a permanency planning order ceasing reunification efforts and a termination of parental rights order terminating her rights to her children. For the foregoing reasons, we affirm.
I. Background
On 19 August 2010, the McDowell County Department of Social Services (“DSS”) filed juvenile petitions alleging that the children involved in this case were neglected and abused juveniles. The petitions included a lengthy description of physical abuse of the children, including allegations that the father had bruised and scarred Jane ; the father had bruised Tom, hit him in the head with a shoe, and inflicted belt marks around his neck; and the father had hit Allison and Nolan in the chest to the point that respondent-mother was concerned one of the children could not breathe. On 23 September 2010, the trial court entered an adjudication and disposition order adjudicating all of the juveniles abused and the trial court determined the permanent plan at that time to be reunification. Over the next few years the trial court conducted numerous review hearings, and on 8 May 2013, the trial court entered a permanency planning order ceasing reunification efforts and changing the permanent plan to adoption. Thereafter, on 29 October 2013, the trial court entered a 31–page order, terminating respondent-mother's and the father's parental rights to three of the children. Respondent-mother appeals the orders ceasing reunification efforts and terminating her parental rights.
Pseudonyms will be used to protect the identity of the minors involved.
Allison's paternity was at issue, and thus she was not included in the order regarding respondent-mother and father.
The children's father does not appeal.
II. Relative Placement
Respondent first contends that “the trial court erred in entering its permanency planning order of May 8, 2013, where the court ignored evidence as to the suitability of a relative placement [with Ms. Tammy Frank], made findings about that home which do not have an evidentiary basis and did not make proper dispositional findings[.]” (Original in all caps.) “All dispositional orders of the trial court after abuse, neglect and dependency hearings must contain findings of fact based upon the credible evidence presented at the hearing. If the trial court's findings of fact are supported by competent evidence, they are conclusive on appeal.” In re Weiler, 158 N.C.App. 473, 477, 581 S.E.2d 134, 137 (2003) (citations omitted).
The trial court made the following unchallenged findings of fact regarding the proposed relative placement with Tammy Frank:
18. All of the juveniles except [Allison] have high needs and significant behavioral issues. All of the juveniles except [Nolan] take medication to help them sleep.
....
21. The juvenile, [Tom], requires his own bedroom and is only allowed to have a mattress in his bedroom due to his violent and aggressive tendencies.
....
38. Tammy [Frank and her husband] ... own their own home. It has three (3) bedrooms and (2) bathrooms.... She and her husband share a bedroom, her daughters share a bedroom, and her sons share a bedroom.
Respondent challenges portions of finding of fact 38, and we have excluded those portions. The recited finding as provided herein is unchallenged.
39. A home study of Tammy [Frank]'s through ICPC was conducted in 2011. It was denied because of financial concerns and lack of space in the home. Additionally, there are concerns regarding the support afforded to this family by the juveniles' paternal grandparents, whose home study was also denied in December 2010. The home study of Tammy [Frank] ... was admitted as GAL # 3 without objection by any party.
While respondent does challenge finding of fact 39, she essentially disagrees with the home study's determinations but does not contend that the trial court's finding regarding the home study was erroneous.
--------
....
43. Tammy [Frank] has some relationship with the juveniles, though it is not close. She saw the juveniles once three or four months ago when she was here for a court hearing. The last time her husband saw the juveniles was four years ago. The Court finds her to be a well-meaning, good person who wants to provide a home for the juveniles in order to help her brother and family.
....
45. Tammy [Frank] is the only relative of the juveniles that is available to consider for placement; however, because the same circumstances surrounding the denial of the home study continue to exist and the high needs of the juveniles, it is not in the juveniles' best interest to be placed with Tammy [Frank].
Defendant directs this Court's attention to In re A.S., 203 N .C.App. 140, 693 S.E.2d 659 (2010). In In re A.S.,this Court remanded the case to the trial court because the trial court had only one finding regarding placing the child with relatives and that one finding “relied heavily upon its finding in proceedings involving [the child's] siblings” [,] and the relied-upon finding had been previously “disavowed” by this Court. 203 N.C.App. at 141–44, 693 S.E.2d at 660–62. In re A.S.is inapposite to this case because the trial court made numerous findings of fact regarding the relative placement based upon the evidence presented at the permanency planning hearing. Contrast id.In addition, the findings here included the medical and behavioral reasons that these particular children need more space than the Franks' home could offer. Furthermore, respondent has not contested the trial court's ultimate determination that it is not in the children's best interests to be placed with Ms. Frank. We conclude that the unchallenged and therefore binding findings of fact support the determination that it is not in the children's best interests to be placed in Ms. Frank's home, and as such the trial court did not abuse its discretion in making this determination. See Peters v. Pennington, 210 N.C.App. 1, 13, 707 S.E.2d 724, 733 (2011) (“Unchallenged findings of fact are binding on appeal.”); see generally In re J.A.A., 175 N.C.App. 66, 75, 623 S.E.2d 45, 51 (2005) (considering an issue regarding a child being placed with a relative and whether the trial court abused its discretion in determining the best interests of the child). As such, this argument is overruled.
III. Cessation of Reunification Efforts
Respondent next contends that “the trial court erred in entering an order which ceased reunification efforts where neither the findings of fact nor the evidence support that disposition.” (Original in all caps.) “All dispositional orders of the trial court after abuse, neglect and dependency hearings must contain findings of fact based upon the credible evidence presented at the hearing. If the trial court's findings of fact are supported by competent evidence, they are conclusive on appeal.” In re Weiler, 158 N.C.App. at 477, 581 S.E.2d at 137 (2003). Furthermore, “[i]n a permanency planning hearing held pursuant to Chapter 7B, the trial court can only order the cessation of reunification efforts when it finds facts based upon credible evidence presented at the hearing that support its conclusion of law to cease reunification efforts.” Id.
North Carolina General Statute § 7B–507(b) provides,
In any order placing a juvenile in the custody or placement responsibility of a county department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order, the court may direct that reasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease if the court makes written findings of fact that:
(1) Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time[.]
N.C. Gen.Stat. § 7B–507(b)(1) (2011). Defendant contends that the trial court did not make the required findings under North Carolina General Statute § 7B–507(b)(1).
The trial court made the following unchallenged findings regarding the futility of continuing the reunification efforts which had been ongoing for nearly three years and the reasons that continuation was inconsistent with the children's health, safety and need for a safe, permanent home:
24.... [Nolan] and [Tom] began Trauma Focused Cognitive Behavior Therapy.
25. In order for Trauma Focused Cognitive Behavior Therapy to be successful, the juveniles must feel safe during the therapeutic process, especially during the time where the trauma narrative is being developed and addressed. This typically means that for children who have been victimized that they do not have contact with their alleged perpetrators/or the person responsible for their trauma.
26. Visits with the Respondent Parents continue to expose [Tom] and [Nolan] to their perpetrators thereby exacerbating trauma related triggers for both juveniles. This creates increased overall hyper arousal and re-experiencing of trauma related events for both boys that then connects and contributes to each juvenile's thoughts, feelings and behaviors.
27. [Tom] has shared in therapy about physical abuse that has been inflicted by both Respondent Parents. Ms. Sigmon asked [Tom] on February 21, 2013 what his hopes were for his family and he shared that he needed to learn karate so that he could become “a good fighter” to keep himself and his siblings safe. [Tom] has also shared in therapy that the Respondent Father threw him into a wall, choked him, hit his head really hard, and that his mom slapped his face and kicked him “all the time.”
28. [Tom] continues to exhibit fear and anxiety connected with both Respondent Parents.
....
30. The juveniles need stability and structure and need to know what to expect for their future.
31. None of the juveniles had structure or stability in their lives prior to coming into the custody of the Department.
32. Ms. Sigmon recommended that in order to reduce anxiety, trauma related stressors, and improve treatment related progress that the Court reach a resolution in regards to reunification with the Respondent Parents.
33. Ms. Sigmon reports that continued visits with the Respondent Parents are not in the best interest of the juveniles [Tom] and [Nolan].
....
56. During her evaluation, the Respondent Mother told Dr. Sansbury that she was not sure what they (the Department) want from them (the Respondent Parents). The Respondent Mother reported to Dr. Sansbury that, “She did not allow it (the abuse) to happen. Nothing was going on. They (the Department) are trying to tell us that they had several calls and several files.” She stated, “Once we was the perfect family.”
....
58. The Respondent Mother was administered the Minnesota Multiphasic Personality Inventory–2 (MMPI–2) and the Child Abuse Potential Inventory (CAP). On the MMPI–2, her test taking approach was to answer the questions consistently, suggesting that she adequately read the questions and responded in a consistent manner throughout testing. On the CAP, the Respondent Mother's score on the scale for potential for abuse was quite high, being above the clinical cutoff for identified families at risk. Individuals with elevations this high have been shown to be at risk for becoming physically abusive with their children in the next six months to a year. On the subscales, she scored extremely high on rigidity suggesting that she lacks the ability to adjust her expectations of children to their developmental needs.
59. The Respondent Mother has been diagnosed with adjustment disorder, chronic.
60. The Respondent Mother has difficulty admitting to and dealing with the physical abuse that has occurred prior to the juveniles' removal from the home. She has never discussed her own use of physical punishment; she tends to focus on the incident that occurred with the Respondent Father. She has been unwilling to process that incident to a great degree in spite of visual pictures which showed how seriously the juveniles were injured. Generally, the Respondent Mother understands that physical discipline should not occur; however, she is poorly prepared to implement and show the constraint necessary to appropriately parent the juveniles. She continues to have a very rigid way of looking at parenting, is unable to adjust her thinking to accommodate the developmental needs of the juveniles and scored high on the CAP testing that predicts the possibility of abuse occurring in the home again.
....
62. The prognosis for improving the Respondent Mother's parenting abilities is guarded.
63. That if the juveniles were returned to the home of the Respondent Parents, the risk of future abuse would be high.
64. That if the juveniles were returned to the home of the Respondent Parents, the risk of future neglect would be high.
....
66. Dr. Sanbury's prognosis for this family of being reunited without significant problems and continued risk of physical abuse occurring continues to be highly guarded.
....
78. The Department is recommending that the permanent plan of care for the juveniles be adoption.
79. The Guardian ad Litem is recommending that the permanent plan of care for the juveniles be adoption.
....
82. The Department has since the initial permanency planning hearing made not only reasonable, but extraordinary, efforts to reunify this family and implement a permanent plan for these juveniles.
83. Despite the Department's extraordinary efforts to reunify this family, neither the Respondent Mother nor the Respondent Father can safely or effectively parent these juveniles.
84. Efforts to reunite the family clearly would be futile or inconsistent with the juveniles' safety and need for a safe, permanent home within a reasonable period of time.
....
86. The best plan of care to achieve a safe, permanent home for the juveniles within a reasonable period of time is adoption.
87. Visitation between the juveniles and the Respondent Parents should cease due to the Court ceasing reunification efforts with the Respondent Parents. Visitation with the Respondent Parents is no longer in the juveniles' best interest. This is an appropriate visitation plan.
....
89. It is not in the best interest of the juveniles to return to the home of the Respondent Mother or Respondent Father within six months because the Respondent Parents continue to minimize the abuse that occurred in their home; therefore, they have been unable to internalize and apply concepts learned through therapy and supervised visitation. The prognosis for this family of being reunited without significant problems and continued risk of physical abuse occurring continues to be highly guarded. The Respondent Mother's CAP testing revealed a high probability of abuse in the home occurring again....
....
100. The juveniles' continuation in or return to the juveniles' own home would be contrary to the juveniles' best interest.
101. The conditions which led to the custody of the juveniles by the Department and the removal from the home of the Respondent Parents continue to exist and return of the juveniles to the home of the Respondent Parents would be contrary to the welfare of the juveniles.
....
105. The juveniles require more adequate care than the Respondent Parents can provide at this time.
(Emphasis added.)
Based upon these thorough and extensive findings, which are not challenged by respondent, including a specific determination that “[e]fforts to reunite the family clearly would be futile or inconsistent with the juveniles' safety and need for a safe, permanent home within a reasonable period of time[,]” the trial court's determination that reunification efforts should cease was fully supported. This argument is overruled.
III. Grounds for Termination
Respondent next contends that “the trial court erred in concluding that a ground exists to terminate [respondent's] parental rights under N.C. Gen.Stat. § 7B–1111(a)(1) [.]” (Original in all caps.) “On appeal, the standard of review from a trial court's decision in a parental termination case is whether there existed clear, cogent, and convincing evidence of the existence of grounds to terminate respondent's parental rights.” In re Oghenekevebe, 123 N.C.App. 434, 439, 473 S.E.2d 393, 398 (1996). North Carolina General Statute § 7B–1111(a)(1) provides,
The court may terminate the parental rights upon a finding of one or more of the following:
(1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B–101 or a neglected juvenile within the meaning of G.S. 7B–101.
N.C. Gen.Stat. § 7B–1111(a)(1) (2013). North Carolina General Statute § 7B–101(15) provides that a neglected juvenile is
[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
N.C. Gen.Stat. § 7B–101(15) (2013). In determining neglect, the trial court must consider “the fitness of the parent to care for the child at the time of the termination proceeding.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). Although evidence of past neglect is admissible, “[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect.” Id.(citation omitted).
Respondent contends that “[t]he court ignored [her] current circumstances ... and made no findings showing likelihood of repetition of prior neglect [.]” Furthermore, respondent mainly argues that only respondent-father abused the children and that she did nothing wrong. To the contrary, the trial court found unchallenged:
26. The respondent mother and respondent father (collectively “the respondent parents”) have excessively disciplined the minor children since at least 2009. The Department has provided services to the family since 2009; however, the respondent parents have not shown benefit from those services.
38. .... The Department proposed the respondent mother stay at the women's shelter with the minor children. She refused because she did not want someone else cooking for her meaning that she refused to go to the shelter to seek safety and receive help for herself and her children.
....
55. There has been ongoing domestic violence between the respondent parents as admitted to by the respondent father.
56. The respondent mother continues to deny the domestic violence despite the fact the respondent father said it was happening.
....
61. When questioned about the assault and injuries to the minor children ..., the respondent mother testified that “It's not like he [the respondent father] hit them with a brick or rock” and that “It's not like we strung them [the minor children] up in a tree.”
62. Despite the serious nature of the injuries to the minor children [Jane] and [Tom], the respondent-father's plea of no contest to Felony Negligent Child Abuse—Serious Physical Injury ..., the respondent mother continues to believe the minor children were not in danger in the respondent father's care.
....
64. The respondent mother failed to protect the minor children and believes the respondent father's actions were normal....
68. .... The respondent parents blame the Department and foster care for the minor child's behaviors and mental health issues.
....
71. As of the date of this hearing, the respondent mother continues to present as though everything is fine with the way her family functioned prior to the minor children being removed from their home.
....
88. The respondent parents could not effectively assist Dr. Honeycutt in the treatment of the minor children because they refused to disclose to her what was actually happening in the home and why those things were happening prior to the removal of the minor children.
....
90. It is impossible to safely reunify this family without the respondent parents demonstrating a thorough understanding and acceptance of the minor children's behaviors and mental health needs. The respondent parents continue to refuse to acknowledge the minor children's needs; therefore, it is impossible to teach the respondent parents how to effectively and safely parent the minor children independently.
91. .... The respondent parents refuse to accept responsibility for the consequences their own actions have had on the minor children. The respondent parents continue to be in denial about the high needs of the minor children. Due to their lack of acknowledgement, the therapists were never able to advance to family therapy and plan for how to safely reunify this family.
92. For the past three (3) years, the respondent parents have blamed the Department for their family issues. The respondent mother has even stated she had a perfect family prior to the Department's involvement. She believes the Department's involvement and the Court's involvement is outrageous. She continues to believe the minor children were never in danger when they were in the respondent parents' custody. She does not believe the way the respondent father disciplined the minor children was inappropriate because “it did not happen all the time.”
....
103. On the CAP, her score on the scale for potential abuse was quite high, being above the clinical cutoff for identified families at risk. Individuals with elevations this high have been shown to be at risk for becoming physically abusive with their children in the next six months to a year. She continued to score extremely high on rigidity suggesting that she continues to lack the ability to adjust her expectations of the minor children to their developmental needs.
....
116. This family is a multi-stressed family. If treatment is not sustained, multi-stressed families typically lapse back into prior interaction patterns.
....
120. The respondent mother has never exhibited empathy toward the minor children because of their injuries and the way the respondent parent's actions hurt the minor children....
121. Due to the rigidity of the respondent parents, they are unable to focus on the needs of the minor children, which can lead to the respondent parents using coercive behavior to modify the minor children's behavior, which leads to violence.
....
127. At nearly all of the supervised visits, at least two social workers were needed to supervise the visits due to the minor children's behaviors and the inability of the respondent parents to effectively manage all four of the minor children.
....
154. The respondent mother chose her husband over her children.
....
164. Returning the minor children to the custody of the respondent parents would cause issues and concerns for the minor children's safety.
165. The respondent parents' situation has not improved, their ability to parent the minor children has not improved, and if the minor children were returned to the respondent parents' care, they would be going back to the same situation they were in at the time of their removal. If the minor children were returned to the respondent parents, there is a high likelihood neglect would occur.
....
171. Pursuant to N.C. Gen.Stat. § 7B–1111(a)(1), the respondent mother has neglected the minor children; therefore, there is a high likelihood of repetition of the neglect if the minor children were returned to the care and control of the respondent mother as the respondent mother has failed to correct those conditions that led to the removal of the minor children from her care. The respondent mother continues to engage in conduct not in the best interest of the minor children.
The extensive binding findings of fact support a determination of neglect as a grounds for termination. SeeN.C. Gen.Stat. § 7B–101(15). Furthermore, as only one ground is needed to terminate parental rights, we need not consider the other grounds raised on appeal. See In re P.L.P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006). These issues are overruled.
IV. Conclusion
For the foregoing reasons, we affirm.
AFFIRMED.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).
Opinion
Appeal by respondent-mother from orders entered 8 May 2013 by Judge C. Randy Poole and 29 October 2013 by Judge Robert K. Martelle in District Court, McDowell County. Heard in the Court of Appeals 3 December 2014.